from the learning-from-the-past dept

Both TPP and TAFTA/TTIP are based on the premise that by boosting trade and investment, general prosperity will increase too. And yet, despite the huge scale of the plans, and their major potential knock-on effects on the lives of billions of people, precious little evidence has been offered to justify that basic assumption. To its credit, the European Commission has at least produced a report (pdf) on the possible gains. But as I've analyzed elsewhere, the most optimistic outcome is only tangentially about increased trade, and requires a harmonization of two fundamentally incompatible regulatory systems through massive deregulation on both sides of the Atlantic. In any case, the much-quoted figures are simply the output of econometric models, which may or may not be valid, and require extrapolation to the rather distant 2027, by which time the world could be a very different place.

Given the difficulty of saying anything definite about the future, it makes sense to look back at how past trade agreements have actually worked out for those involved. One of the most important, the North American Free Trade Agreement (NAFTA), has been operational for 20 years, and so offers us a wealth of hard facts. Public Citizen has just released an excellent analysis of what happened (pdf). As it points out:

NAFTA was fundamentally different than past trade agreements in that it was only partially about trade. Indeed, it shattered the boundaries of past U.S. trade pacts, which had focused narrowly on cutting tariffs and easing quotas. In contrast, NAFTA created new privileges and protections for foreign investors that incentivized the offshoring of investment and jobs by eliminating many of the risks normally associated with moving production to low-wage countries. NAFTA allowed foreign investors to directly challenge before foreign tribunals domestic policies and actions, demanding government compensation for policies that they claimed undermined their expected future profits. NAFTA also contained chapters that required the three countries to limit regulation of services, such as trucking and banking; extend medicine patent monopolies; limit food and product safety standards and border inspection; and waive domestic procurement preferences, such as Buy American.

This makes NAFTA the clear model for TPP and TAFTA, both of which hand enormous power to corporates, at the expense of the public and governments.

In 1993, NAFTA was sold to the U.S. public with grand promises. NAFTA would create hundreds of thousands of good jobs here -- 170,000 per year according the Peterson Institute for International Economics. U.S. farmers would export their way to wealth. NAFTA would bring Mexico to a first-world level of economic prosperity and stability, providing new economic opportunities there that would reduce immigration to the United States. Environmental standards would improve.

Techdirt has already discussed how NAFTA has proved disastrous for the US in basic financial terms; here we'll look at some of the other effects, not just in the US, but for Mexico too.

NAFTA has contributed to downward pressure on U.S. wages and growing income inequality. According to the U.S. Bureau of Labor Statistics, two out of every three displaced manufacturing workers who were rehired in 2012 experienced a wage reduction, most of them
taking a pay cut of greater than 20 percent.

…

Despite a 188 percent rise in food imports from Canada and Mexico under NAFTA, the average nominal price of food in the United States has jumped 65 percent since the deal went into effect.

…

The reductions in consumer goods prices that have materialized have not been sufficient to offset the losses to wages under NAFTA. U.S. workers without college degrees (63 percent of the workforce) have likely lost an amount equal to 12.2 percent of their wages under NAFTA-style trade even after accounting for the benefits of cheaper goods.

Taken together, these facts represent the reality for much of the US public: wages have fallen, the cost of food has risen, and even though consumer good prices have dropped, overall US workers are worse off than they were before NAFTA came into force. People have lost out in non-monetary ways, too:

Scores of NAFTA countries' environmental and health laws have been challenged in foreign tribunals through the controversial investor-state system. More than $360 million in compensation to investors has been extracted from NAFTA governments via "investor-state" tribunal challenges against toxics bans, land-use rules, water and forestry policies and more. More than $12.4 billion are currently pending in such claims.

NAFTA has been the test-bed for corporations to use investor-state dispute settlement (ISDS) to resist or even undo improvements in health and environmental laws that reduce their profits. Even the European Commission, a big fan of corporate sovereignty, has been forced to recognize that ISDS is a danger to the public for this reason.
In many ways, Mexico has fared even worse than the US under NAFTA:

The export of subsidized U.S. corn did increase under NAFTA, destroying the livelihoods of more than one million Mexican campesino farmers and about 1.4 million additional Mexican workers whose livelihoods depended on agriculture.

The desperate migration of those displaced from Mexico's rural economy pushed down wages in Mexico's border maquiladora factory zone and contributed to a doubling of Mexican immigration to the United States following NAFTA's implementation.

That last point is important: one of the selling points of NAFTA was that it would help stem the flood of Mexican migrants into the US. As the Public Citizen document reports:

Then-Mexican President Carlos Salinas de Gortari claimed NAFTA would reduce the flow of migrants from Mexico into the United States, saying: "Mexico prefers to export its products rather than its people." Salinas infamously added that the U.S. decision over NAFTA was a choice between "accepting Mexican tomatoes or Mexican migrants that will harvest them in the United States."

As in the US, overall, Mexicans have lost out under NAFTA:

Real wages in Mexico have fallen significantly below pre-NAFTA levels as price increases for basic consumer goods have exceeded wage increases. A minimum wage earner in Mexico today can buy 38 percent fewer consumer goods as on the day that NAFTA took effect.

Public Citizen has performed an invaluable service by pulling together the figures for NAFTA in this rigorous, fully-referenced document. That's not least because the TPP negotiations are at a critical point, with President Obama desperate to obtain Fast Track trade authority that will allow him and his negotiators to push through TPP (and TAFTA/TTIP) with no real Congressional scrutiny and a simple yes/no vote at the end. As Public Citizen points out:

the administration and corporate proponents of the TPP will have difficulty getting the controversial deal through Congress. Twenty years of NAFTA's damage has contributed to a groundswell of TPP opposition among the U.S. public and policymakers. In November 2013, a bipartisan group of 178 members of the U.S. House of Representatives stated their early opposition to any attempt to Fast Track the TPP through Congress, while other members expressed similar concerns about the TPP and the Fast Track trade authority scheme.

Congressional rejection of the TPP stands to intensify as the 20th anniversary of NAFTA provides a fresh reminder of the damage that such past pacts have wrought. It was the initial outcomes of NAFTA that sank previous attempts at massive NAFTA expansions, such as the Free Trade Areas of the Americas and the Asia-Pacific Economic Cooperation (APEC) FTA.

NAFTA's two-decade legacy of tumult and hardship for millions of people in North America could similarly hasten the downfall of the attempt to expand the NAFTA model via Fast Track and the TPP. If so, it would constitute a unique benefit of an otherwise damaging deal.

from the please? dept

Three years ago, we called out the stupid trend of big tech companies pretending that they'd hired some pop star as "creative director" after Intel had named Will.i.am to that role and Polaroid had done the same with Lady Gaga. A year later, we repeated what a dumb idea this was when Blackberry named noted iPhone user Alicia Keys to the same role. As we said, if this was, say, an actual music service, and the person was really involved, it might make sense. But the truth of all three of these situations was that they were little more than a promotional sponsorship deal pretending to be a "hire." And, this really discounts the hard work that actual creative directors do for these companies.

Either way, it should come as little surprise that Blackberry -- a company on the verge of not existing -- is now admitting that Keys is "leaving her role" exactly a year after it started. Let's be frank here: she's not "leaving her role." She had a one year endorsement/promotional contract, and that deal is now ending. The idea that she was actually employed as a creative director is clearly bogus. What did she do?

She appeared at numerous corporate events throughout the year and in some promotional material.

Right. Same exact thing as a typical celebrity endorsement deal.

For whatever reason, tech companies always seem to announce these things in January (often in conjunction with CES, which is taking place next week). Hopefully, this year, we can avoid such silliness. I don't want to hear about Justin Bieber becoming "creative director" at IBM or Miley Cyrus' new "job" as "creative director" at Microsoft.

from the buh-bye dept

New York City Police Chief Ray Kelly is nearly nothing but history, but that hasn't stopped him from doing his best to secure his legacy before calling it a career. (And exiting with $1.5 million worth of personal bodyguards paid for by the city city's residents…)

In an interview with the New York Times, Kelly defended the NYPD's stop-and-frisk program, first stating that he was "polling well" and following that up with the usual defense that crime numbers had declined over the past decade. Of course, neither he nor his interviewer bothered to point out his tenure coincided with a period of steep decline in violent crime nationwide nor did they mention the fact that Judge Scheindlin, in her decision finding the program unconstitutional, stated basically that the ends don't justify the means. Crime numbers would probably drop further if the NYPD performed warrantless house-to-house searches, but that still wouldn't make it justifiable.

But Kelly went further than shrugging off criticism of the city's most notorious law enforcement program, targeting the FBI for its apparent inability to prevent domestic terrorist attacks.

The interview turns to 2002 and those post-attack days when Mr. Kelly returned to the commissioner’s office. One of Mr. Kelly’s professors at Harvard, Graham Allison, studied nuclear terror and released prospective blast maps for New York City.

Mr. Kelly did not need to see blast maps. He lived in Battery Park City, within sight of ground zero.

He smiled grimly. “It was gloom and doom,” he said. “Our prime lesson is that we couldn’t rely on the feds alone.” [...]

For his part, Mr. Kelly could not resist another jab at the F.B.I. and its failure to tell the Boston Police Department everything suspicious that it knew about one of the men who later bombed the Boston Marathon.

“We want information right away,” he says. “I think in retrospect the mayor in Boston and the police commissioner in Boston feel the same way based on what they knew or didn’t know relative to the Boston Marathon bombing.”

In a way, he's right. The failure of government agencies to share information on suspected terrorists failed to prevent the 9/11 attacks as well as contributed to the Boston bombers eluding detection until it was too late. (But our NSA provided "valuable" intel suggesting the Boston bombing was an isolated attack.)

But more troubling is the underlying assertion that the NYPD can do a better job on its own. Under Ray Kelly, the NYPD became known for its pervasive surveillance of Muslims and their places of worship. Thousands of reports were generated and hundreds of informants were deployed to infiltrate these communities. This is the NYPD's other shame -- widespread rights violations and little to nothing to chalk up in the "results" column.

Kelly employed a former CIA official to run this program who leveraged the post-9/11 attack climate of fear to convince a judge to strip civil liberties protections granted by a previous court decision (the "Handschu Agreement"). Using this weakened "agreement," the NYPD began placing Muslims under surveillance while they engaged in First Amendment-protected activity. The means used to acquire intel were so questionable, the CIA itself was unable to use anything the NYPD provided because the methods deployed violated several of the CIA's own rules. If the CIA find "evidence" collected by a local law enforcement agency unusable, there's obviously some serious flaws in the methods deployed to gather intelligence.

Kelly may have been frustrated by the lack of interagency sharing, but his decision to make the NYPD a law unto itself was the wrong response. And again, there's no indication that this widespread surveillance and infiltration prevented terrorist attacks. Kelly seems to feel the lack of terrorist attacks speaks for itself -- and justifies the ongoing civil liberties violations performed by his department.

from the the-public-is-too-stupid-to-know-what's-good-for-it dept

Former NSA head Michael Hayden's (presumably unpaid) goodwill tour on behalf of the Agency-Most-Likely-To-Go-Rogue continues. Following up a memorable interview with CBS News in which he called Ed Snowden a "traitor" and ignored questions about the legality of installing exploits in computer hardware and pushing for adoption of compromised encryption methods, Hayden stopped in to speak with USA Today.

Hayden first goes wrong when explaining why the NSA shouldn't have to change.

"Right now, since there have been no abuses and almost all the court decisions on this program have held that it's constitutional, I really don't know what problem we're trying to solve by changing how we do this," he said, saying the debate was sparked after "somebody stirred up the crowd." That's a reference to Snowden, who was granted asylum in Russia.

Saying there have been "no abuses" is clearly untrue. The agency itself has admitted to several abuses (although the NSA frames them as errors, rather than deliberate misuse of the system) and others have leaked information on others the agency hasn't been particularly forthcoming about. (LOVEINT, anyone?)

Hayden also applies a bit of misdirection by narrowing the focus to the Section 215 program. There are many other programs that are at least as dubious in terms of constitutionality. But this one is the safe pick -- the one that relies on the Third Party Doctrine and the fact that it's been almost impossible until just recently for anyone to be granted standing to bring a lawsuit against the government for civil liberties violations committed by the agency.

Lastly, trying to dismiss Snowden as a rabble rouser makes the implicit suggestion that everything the NSA does is perfectly normal, legal and no big deal. If it "looks bad," it's only because a former analyst somehow made it look bad by exposing the inner workings. In other words, the problem isn't the agency's programs -- it's the easily-ired public.

And as far as dealing with the public's reaction to these leaks goes, Hayden's suggestion to the administration is to ignore the outrage and do what's "right" (in the eyes of the agency).

"Here I think it's going to require some political courage," said Hayden, 68, a retired Air Force general whose service in the nation's top intelligence posts gives him particular standing. "Frankly, the president is going to have to use some of his personal and political capital to keep doing these things..."

"President Obama now has the burden of simply doing the right thing […] And I think some of the right things with regard to the commission's recommendations are not the popular things. They may not poll real well right now. They'll poll damn well after the next attack, all right?"

According to Hayden, the NSA is right and the public is wrong, even if it doesn't realize it. Obama and those that follow him will just need to trust the agency and not worry too much about the public's opinion. Hayden says the government needs to make the tough decision to protect the surveillance status quo. If the administration chooses to roll things back, and another 9/11 occurs because of this (this is very specious reasoning), rescinding these restrictions will suddenly poll extremely well, at least according to Hayden.

But that's an assumption that only the NSA defenders make. Somehow they've arrived at the conclusion that the public will always clamor for increased security and fewer civil liberties in the wake of a terrorist attack. This is based on the prevailing perception of the public's attitude shortly after the 9/11 attacks. But the recent attack in Boston didn't result in citizens asking for more cameras, cops and pervasive surveillance. In fact, many Bostonians were shocked that the city was so quick to effectively put the city under martial law and perform house-to-house searches for the one of the suspects. The only people asking for more government intrusion were government officials and law enforcement heads already prone to pushing for greater power and expanded surveillance.

Moving on from these baffling assertions, Hayden then rejects nearly every other recommendation from the presidential commission. He claims Section 215 data would be more "secure" and "private" if stored by the NSA, rather than held by private companies. He also stated the agency shouldn't be forced to seek court orders before querying the collection, saying this would "reverse" changes made post-9/11. This, of course, ignores the fact that the agency had to do exactly that (court orders for searching the database) after it screwed up the Section 215 program so thoroughly FISC judge Reggie Walton nearly shut the whole thing down.

Hayden, like many NSA defenders, increasingly appears to be living in an alternate reality where the leaks and documents freed via lawsuits against the government haven't exposed a great deal of agency abuse and misuse of its power and data collections. Each successive revelation furthers the notion that the agency has used several decades of darkness to insert itself into worldwide communications in ways that no one charged with oversight would have reasonably imagined. This makes all the claims about legality and protecting the country ring hollow. The agency's capabilities far surpass what's necessary to achieve its aims, and exceed what any rational person would believe to be protected by law.

from the do-keep-this-up dept

I'll admit that, other than knowing his name and that he was a Hollywood actor in some big budget films, I didn't know very much at all about Shia LaBeouf. However, apparently he's been facing some "controversy" over a few different examples of plagiarism in his work, with the "biggest" being plagiarizing a cartoon by Daniel Clowes called Justin M. Damiano with the short film HowardCantour.com. Others also pointed out that, in a comic book created by LaBeouf, he apparently plagiarized a bunch of others, including Kurt Vonnegut and Charles Bukowski (if you're going to plagiarize, plagiarize from the best, apparently).

While plagiarism scandals pop up every so often, there are a variety of standard responses -- usually involving some sort of apology and then someone laying low for a while before reappearing (just ask Joe Biden). LaBeouf initially appeared to be following the same script... tweeting out apologies, before people started realizing that the apologies themselves were "plagiarized." That includes using Tiger Woods' apology after his scandal: "I have let my family down, and I regret those transgressions with all of my heart." Also, former Defense Secretary Robert McNamara's famous apology concerning his role in the Vietnam War: "I was wrong, terribly wrong. I owe it to future generations to explain why."

From there, he finally admitted on New Year's eve that he was really mocking everyone -- which should have been obvious from the beginning, by saying:

You have my apologies for offending you for thinking I was being serious instead of accurately realizing I was mocking you.

He then decided to give an email interview with BleedingCool, much of which itself appears to be plagiarized as well. BleedingCool initially claimed that it believed the statements were "original" to LaBeouf, but then has gone back and noted repeated lines in the interview that are plagiarized from others. I'm guessing that they're missing quite a few others.

But what comes out of it is what is likely a highly plagiarized defense of plagiarism, as well as a condemnation of the state of copyright law today, and how it limits forms of expression. Take this tidbit, for example:

The problem begins with the legal fact that authorship is inextricably
bound up in the idea of ownership and the idea of language as
Intellectual property. Language and ideas flow freely between people
Despite the law. It’s not plagiarism in the digital age – it’s repurposing.
Copyright law has to give up on its obsession with “the copy”
The law should not regulate “copy’s” or “reproductions” on there own.
It should instead regulate uses – like public distributions of copyrighted work -
That connect directly to the economic incentive copyright law was intended to foster.
The author was the person who had been authorized by the state to print there work.
They were the ones to be held accountable for the ideas.
THE FIRST LAWS ON AUTHORSHIP WERE USED TO CENSOR & PERSECUTE
THE WRITERS WHO DARED PUBLISH RADICAL IDEAS.
Simple – should creation have to check with a lawyer?

At least some of that is from Larry Lessig. Almost certain other parts are from others. But, in a way he's proving the point. He is creating something new, unique and interesting, even as he's plagiarizing others, even to the point of talking about outdated copyright laws.

France-based telecom firm Orange has revealed plans to take legal action against the US National Security Agency (NSA) for using its submarine cable for surveillance.....

An Orange spokeswoman was quoted by Reuters as saying: "We will take legal action in the next few days because we want to know more about the eventuality that Orange data may have been intercepted."

Again, I'm not sure under what jurisdiction or exactly what kind of lawsuit Orange is intending to bring, but it's yet another bit of blowback against the NSA's overreach in its efforts to spy on absolutely everyone. If Orange is able to succeed, I imagine that a variety of other companies might also look at lawsuits. We're generally highly critical of trade agreements that create corporate sovereignty programs, called "investor state dispute settlement" panels that allow foreign companies to sue governments over interfering with their business, but I wonder if the US's infatuation with these kinds of programs might come back to bite it really hard if it turns out that these mechanisms are used by foreign companies to argue that the NSA has interfered in their business efforts...

The trick apparently -- and I know, this is crazy -- is to Make Good Movies. Shocking, I know.

"Going down the list of studios, they all had great movies that kept people coming back to the theaters all year long," said Nikki Rocco, president of distribution at Universal

What a concept.

Of course, some will argue that the box office is only a part of the industry's revenue -- and that's absolutely true. Of course, to argue about declines in home video revenue is pretty disingenuous since the industry fought incredibly hard to block that revenue stream from ever existing. Besides, as with the box office, we're seeing that when studios (gasp!) produce good content and make it easy and convenient to watch at home for a reasonable price and without painful restrictions, audiences seem to jump on board.

It's almost as if... the problem has never been "piracy" but the fact that the studios have spent years resisting providing consumers with good alternatives...

from the more-people-are-realizing dept

We've certainly discussed plenty of reasons why the US government should recognize that Ed Snowden was an important whistleblower, who should be welcomed home enthusiastically for all he's done -- not threatened with decades in prison or worse. However, it's still surprising to see a newspaper like the NY Times now not only directly calling Snowden a "whistleblower" but arguing forcefully for why the US government should offer him clemency, bring him home, and have him be very involved in the ongoing process to protect our privacy, limit the surveillance state and provide true and meaningful oversight of the intelligence community.

The editorial board doesn't endorse full amnesty, but rather "a plea bargain or some form of clemency" in which he'd face "substantially reduced punishment in light of his role as a whistle-blower." The editorial points out that the claims from government officials, including President Obama, that there were many paths Snowden could have taken to blow the whistle are either misleading or outright lies (especially in the case of President Obama, who insisted that Snowden would have been protected under his executive order -- but that executive order didn't apply to consultants like Snowden). In the end, the editorial board notes that Snowden clearly recognized that going through "official channels" wouldn't have done anything.

In fact, that executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden. More important, Mr. Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the N.S.A., and that they took no action. (The N.S.A. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.

It goes on to list a bunch of revelations and legal actions that are only happening because of Snowden's decisions, and directly notes how "valuable" Snowden's decision to leak information has been. It also calls out those who claim Snowden's efforts somehow damaged the US, saying there's simply no proof.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

In the end, the editorial makes a simple point that should be repeated over and over again:

When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.

from the kudos dept

Adam Sewer, over at MSNBC, recently had a great article discussing how a US Supreme Court Justice Sonia Sotomayor's concurrence in the US v. Jones case has become incredibly important in setting the framework for hopefully restoring the 4th Amendment. When the original ruling came out, there was some confusion over how significant it would be. While the court agreed that the use of GPS in that case was illegal, there were varying opinions as to why. While we initially expected that a different concurring opinion (by Alito, Ginsburg, Breyer and Kagan) would become more important, over time, people have realized that Sotomayor's concurrence clearly lays out why technological change should make us rethink past precedents concerning the collection of information. It was Sotomayor who rightly noted that there's a difference between collecting a bit of info on one person, and collecting pretty much all info on everyone. And it was Sotomayor's concurrence that is being used repeatedly to push for a rethinking of these issues:

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

While it is just a concurrence, rather than the official law of the land, the reasoning is clear and clearly is resonating, which is why it is being raised repeatedly by those looking at these new issues. Its wider inlfuence will likely boomerang back into the Supreme Court before long, where it can have a real impact towards bringing back a respect for the 4th Amendment.

“Justice Sotomayor’s concurrence in Jones was the first time a Supreme Court justice seemed to acknowledge and speak directly to that new reality,” said Catherine Crump of the ACLU, who helped write the group’s Supreme Court brief in Jones. “To have a Supreme Court Justice acknowledge that there is a difference between a few discrete pieces of information about someone and the complete records you can now gather in the era of big data made us feel like we were on the right path.”

Winkler compared Sotomayor’s concurrence in Jones to Justice Louis Brandeis’ concurrence in Whitney v. California, whose expansive interpretation of the First Amendment we now take for granted. “I think that Sotomayor’s concurrence is going to be seen much the same way,” Winkler said.

The article also quotes famed constitutional scholar Laurence Tribe (who also taught President Obama), who had complained when Sotomayor was first nominated that she is "not nearly as smart as she seems to think she is." However, now that she's been on the court for a while, Tribe has completely changed his mind and admits that he's wrong. The ruling like the one in the Jones case is part of the reason why.

“I greatly underestimated how powerful a jurist Justice Sotomayor would be. From the start, she has been an enormously impressive justice, making a major impact in cases like Jones, among many others,” Tribe wrote in an email. “I now regard her as a major force on the Court – someone who is likely to make a historic contribution – and I have no doubt that I was totally wrong in my initial expressions of doubt.”

A powerful concurrence is a good start. Now we need the rest of the Supreme Court, Congress and the executive branch to follow along...

from the good-ideas dept

Conor Friedersdorf, over at the Atlantic, has a good suggestion for employees of the NSA who agree with Ed Snowden that their organization has gone too far and should be reined in... but who don't want to go as far as he did in releasing classified documents, and having to leave the US forever (and facing the potential of life in prison). Because even though it appears that lots of people could access the documents Snowden has leaked, very few are willing to assume the "costs" associated with being a whistleblower like that. Instead, Friedersdorf points out, there are ways to make a very strong statement, without risking a life on the run, in jail or worse. Quit and speak out.

It doesn't require leaking classified information. Nor does it violate the law. To pull off the quarter-Snowden with a twist, which requires even less than a quarter of Snowden's courage, an NSA employee need only resign their position, seek out a trustworthy journalist of their choice, and announce that while they aren't at liberty to reveal any state secrets, they believe that Congress ought to rein in the NSA immediately. "If Senators Dianne Feinstein and Ron Wyden, who are permitted to see classified information, are listening," the staffer could say, "I'd like to brief them on my concerns." At least one of those Senate Intelligence Committee members will take the plea seriously.

Yes, this would involve serious personal sacrifice. Giving up a lucrative job (and one with access to many of the world's secrets) probably isn't easy. But it's not nearly the sacrifice that Snowden made, and yet it would still have quite an impact. Oh, and if you're a sys admin like Snowden, there's a damn good chance you're losing your job anyway, so rather than wait for the pink slip, why not make a statement that doesn't involve breaking any laws, but could make a real difference?

from the not-looking-good dept

The Daily Beast has an interesting article with a number of insider accounts, suggesting that President Obama is seriously leaning towards cutting back the NSA's activities. I'll believe it when I see it -- and there's still a compelling argument that all of these moves are really just an attempt to block or delay serious judicial or Congressional review of these programs. However, there are some very interesting tidbits in the article, including this chastising of NSA boss Keith Alexander for trying to dazzle Obama with tech jargon:

But behind the scenes, Obama was showing some irritation with the intelligence leadership that had pressed for these capabilities and repeatedly vouched for their value. One story that rocketed around the intelligence community involved a meeting between Obama and NSA Director Keith Alexander. Alexander, who holds advanced degrees in physics and electronic warfare, was trying to explain certain aspects of one of the surveillance programs to Obama. As his highly technical and jargon-laden presentation rambled on, Obama was beginning to lose patience. When he finished, Obama thanked him and then icily asked if he could do it over again, "but this time in English."

Some of this fits with earlier statements, in which President Obama more or less admitted that he had no idea what the NSA was up to -- and that only after he found out about stuff in the press did he go back to Alexander and others and find out what the NSA was really doing. At the very least, that suggests incredibly poor leadership skills and five years in which he more or less let the agency run itself with little real oversight.

In fact, the article suggests this may be the case. Despite the fact that Obama, prior to becoming President, supported a number of changes to the surveillance state, upon becoming President, it appears that he let folks like Alexander talk him out of it.

As a senator and as a presidential candidate during the 2008 campaign, Obama harshly criticized the Bush administration's warrantless wiretapping program. But shortly after taking office, he was persuaded by officials that the programs had been placed on a firmer legal foundation and were necessary. He had been briefed on occasional compliance lapses so serious that the secret court overseeing the surveillance programs had threatened to shut them down. But each time he was reassured that no harm was done.

There is no evidence to suggest that Obama expressed much skepticism about the surveillance program during his first term. He was assured on numerous occasions that the NSA's bulk metadata program, which tapped the phone records--though not the content--of virtually all Americans, was a vital tool for foiling terrorist attacks in the United States.

All of this suggests that the President felt he should focus on other things that seemed more pressing, and just accepted the claims of the NSA and its supporters that these programs were both important and legal -- two things that deserved significant scrutiny. But, of course, so long as those programs were kept secret, they weren't "pressing" issues, so Obama could get away with just accepting the claims from the NSA as factual. Since that's changed, he's actually needed to find out what his own NSA is doing, leading to the task force, the changes, and the fact that he's no longer so easily bamboozled with tech jargon from an NSA boss whose specialty seems to be answering questions by not actually answering questions.

I'm still skeptical that we'll see real reform coming out of this part of the process, but hopefully the article accurately shows that President Obama is finally taking a real interest in this, and is no longer simply accepting the claims of the intelligence community.

from the just-get-rid-of-it dept

One of the key points we've brought up repeatedly in discussing the current surveillance state we seem to live in, is that those in charge seem to have no concept whatsoever of a cost-benefit analysis. They look at the world as a situation in which "terrorists must be stopped at all costs." But that's obviously ridiculous. For example, if you really wanted to stop terrorists on commercial airplanes there's a simple way to do that: you end all air travel. That would knock out the issue of terrorists using commercial flights -- but would obviously create another set of headaches while probably doing very little to stop terrorism. That's an extreme example where the costs outweigh the benefits, that's so obviously crazy that it's not considered serious. Yet, by creeping and crawling along, we continually expand the surveillance state in similar ways without ever stopping to consider all the costs that are piling up.

Over at the Washington Post's Wonkblog, Dylan Matthews recently wrote about his experience flying commercially without having to go through security. That's because he flew a small commuter plane that is exempt from having to send its passengers through TSA security. As he noted, the experience was a lot more like taking a bus or a train. You show up right before it's time to go, collect your ticket and get on board. He thankfully points out that this was both awesome and no one died.

That eventually leads to a fairly simple idea: just get rid of the whole TSA and make all air travel like this. He points out that, on a basic cost-benefit analysis, this is probably totally worth it, even if terrorists do go back to trying to use commercial airlines in their plots:

Would this increase hijacking? Probably. But there's no reason to believe it would increase casualties from terrorist attacks overall. That's because increasing airport security just leads terrorists to direct their assaults elsewhere.

The best literature review available on the efficacy of counterterrorism tactics found that, on average, adding metal detectors and security screenings at airports led to about 6.3 fewer airplane hijackings in the years examined (a hijinking-heavy period chronicled in Brendan Koerner's latest book, in case you're interested). But that was more than compensated for by an increase in "miscellaneous bombings, armed attacks, hostage taking, and events which included death or wounded individuals (as opposed to non-casualty incidents) in both the short and long run." In fact, metal detectors and security screenings at airports led to about 6.8 more of these substitute events. "When calculating the overall weighted mean effect size for all of the findings examining the effectiveness of metal detectors, the positive and harmful effects cancel each other out," the review's authors conclude.

Could that literature review be wrong? Sure. The evidence base on counterterrorism effectiveness is very thin because true experiments on it are hard to conduct. But you go to war with the data you have, and the data we have (including some from after that review came out) suggests that even the most rudimentary of security screenings have not saved any lives, all things considered. What they have done is waste countless hours and dollars, because we really needed a rock with which to scare away tigers.

In short: there's little to no evidence that the TSA has saved a single life in stopping terrorism. While it may have prevented specific plots, that energy just went towards other plots and attacks. Yet the costs of the TSA are immense, and we're not just talking about hiring all those people to feel you up at the airport, or even the super expensive naked scanner machines. It's the costs to all of us -- the public who travel. The fact that you have to get to the airport hours before your flight, stand in a very long line to be scanned or felt up and generally humiliated -- that's a massive waste of time and productivity for everyone, for apparently no benefit at all, other than security theater.

Yes, in many ways, this is the same point that Bruce Schneier has been making for ages, but it's nice to see more mainstream publications, like the Washington Post, not just make this basic argument (the costs outweigh the benefits of the TSA) but to go all the way to the level of arguing that totally abolishing the policy probably makes the most sense.

from the we-need-more-than-12-angry-men dept

As they do every year, unfortunately, the good folks at the Center for the Study of the Public Domain at Duke have put together a depressing list of what should have entered the public domain yesterday. As you hopefully know, until 1978, the maximum amount of time that work in the US could be covered by copyright was 56 years (you initially received a 28 year copyright term, which could be renewed for another 28 years). That means, back in 1957, everyone who created the works in that list knew absolutely, and without a doubt that their works would be given back to the public to share, to perform, to build on and more... on January 1, 2014 at the very latest. And they all still created their works, making clear that the incentive of a 56 year monopoly was absolutely more than enough incentive to create.

And yet, for reasons that still no one has made clear, Congress unilaterally changed the terms of the deal, took these works away from the public, without any compensation at all, and will keep them locked up for at least another 40 years. At least.

The website lists out books, movies, music and much more that is locked up away from the public for no good reason at all. In the books, there are works such as:

Jack Kerouac, On the Road (completed 1951, published 1957)

Ayn Rand, Atlas Shrugged

Margret Rey and H.A. Rey, Curious George Gets a Medal

Dr. Seuss (Theodor Geisel), How the Grinch Stole Christmas and The Cat in the Hat

Eliot Ness and Oscar Fraley, The Untouchables

Studs Terkel, Giants of Jazz

Corbett H. Thigpen and Hervey M. Cleckley, The Three Faces of Eve

Ian Fleming, From Russia, with Love

The list of movies is quite impressive as well. Imagine the kind of creativity that would be unleashed if people could take clips from the following list of films and mash them up into something new and wonderful. While I'm sure some folks (including, perhaps, folks reading this right now) could make something amazing out of mashing up clips from many of these works, you'd be making a very risky bet on fair use protecting you -- and even if it did, you might still have to face an insanely costly lawsuit first.

The Incredible Shrinking Man (Based on Richard Matheson’s 1956 book The Shrinking Man)

The Bridge on the River Kwai (Best Picture, Best Director (David Lean), Best Actor (Alec Guinness); also starring William Holden, Jack Hawkins and Sessue Hayakawa)

Elvis Presley’s third and final appearance on The Ed Sullivan Show on January 6, 1957

There's plenty of some of the most influential American music from the early days of rock and roll as well.

If you wanted to find guitar tabs or sheet music and freely record your own version of some of the influential music of the 1950s, January 1, 2014, might have been a booming day for you under earlier copyright laws – “That’ll Be the Day” and “Peggy Sue” (Buddy Holly, Jerry Allison, and Norman Petty), “Great Balls of Fire” (Otis Blackwell and Jack Hammer), and “Wake Up, Little Susie” (Felice and Boudleaux Bryant) would all be available. You could score a short film with Dmitri Shostakovich’s Symphony No. 11 in G minor (Opus 103; subtitled The Year 1905). Or you could stage your own performances of some of Elvis Presley’s hits: “All Shook Up” (Otis Blackwell and Elvis Presley) and “Jailhouse Rock” (Jerry Leiber and Mike Stoller). Today, these musical works remain copyrighted until 2053.

They further note that the classic musical West Side Story came out in 1957 as well. It should be in the public domain. But it's not.

And it's not just arts and entertainment. The post points out plenty of science and technology is still locked up thanks to all of this.

1957 was a noteworthy year for science: the USSR launched Sputnik 1 and Sputnik 2, IBM released the first FORTRAN compiler, and the UK’s Medical Research Council published an early report linking smoking and lung cancer. There were groundbreaking publications in the fields of superconductivity and astrophysics such as “Theory of Superconductivity” by John Bardeen, L.N. Cooper, and J.R. Schrieffer and “Synthesis of the Elements in Stars... ” by Geofrey Burbidge, Margaret Burbidge, William Fowler, and Fred Hoyle.

They further make an important point that while the works listed above grab all the attention, because they were so successful, the real shame is in lots of other works that are simply not available at all any more. And this would likely include all sorts of works from 1985. After all, works created in 1985, if created under the old law, would have been given an initial 28 year copyright term, which would also be expiring, and if history is any guide, the vast majority of those would not have their copyrights renewed. Instead, they're locked up... and quite frequently completely unavailable, with a very real risk of being lost to history.

The really crazy part about all of this is that it's the exact opposite of the entire original purpose of copyright. Copyright law was put in place specifically to encourage the creation of works that would be put into the public domain to promote learning, knowledge and understanding. Yet, instead, it's been distorted, twisted and misrepresented into a system that is used solely to lock stuff up, make it less accessible and less available, limiting the ability to promote knowledge and learning. What a shame.